15 January 2014

Taking the Fifth

The Constitution Center has a great post explaining what "taking the Fifth" means:
Someone pleading the Fifth Amendment in a public proceeding is ingrained in our popular culture, thanks for decades of movies, television shows, and public hearings where the accused defiantly refuses to testify in a moment of high drama. In reality, a person isn’t pleading the entire Fifth Amendment, but just the part that refers to self-incrimination.
The post goes on to explain how this right was expanded to state court proceedings and hearings beyond the criminal courts. FFA students should take particular note of this article, as it touches upon concepts that you most certainly will be exposed to during your FFA studies.

13 January 2014

No Bar Exam Required

The State of Iowa is considering joining Wisconsin as the only states to allow graduates from in-state law schools to start practicing law immediately after graduation. No practical training, no bar exam! The Des Moines Register has a short article explaining the proposal:
Graduates of Iowa’s two law schools could begin practicing law in the state soon after graduation rather than waiting until they pass the bar exam, under a proposal before the Iowa Supreme Court.
The proposal would apply only to law school graduates who stay in Iowa to work. Law school graduates would still have to pass an ethics exam and screening and background checks, according to the proposal. It also would require students to take an Iowa-specific law and procedure course.

07 January 2014

Loser Pays Coming to America?

For the most part, the U.S. court system has tended to reject a loser pay system. As a general rule, each side is responsible for covering the cost of their legal representation, regardless of who wins. There are of course exceptions to this general rule, normally set forth in statutes that require a defendant in certain circumstances to pay the legal fees of the plaintiff should the plaintiff prevail.

But the problem of "patent trolls" is making the federal courts and Congress rethink their aversion to a pure loser pay system. Bloomberg News has more on this developing story.

04 January 2014

Federal Courts Divided Over NSA Spy Program

Two recent decisions by lower federal courts illustrate a big difference between how the court systems in the U.S. and Germany operate, at least the constitutional courts.

In Germany, the Basic Law allows for individuals to apply directly to the Constitutional Court if they believe state actors have violated one of their constitutional rights. This centralized form of judicial review has the advantage of avoiding the problem raised by the title of this post: namely two lower courts applying the constitution to similar facts in a different manner.

In the United States, on the other, where the constitution does not explicitly call for the creation of a constitutional court, questions concerning whether one's constitutional rights have been violated by state actors are answered by lower federal courts. The result, as is often the case, is a similar set facts can come before two different courts, and these courts can come to polar opposite conclusions.

Andrew Cohen's recent article in The Atlantic entitled "Is the NSA's Spying Constitutional? It Depends Which Judge You Ask" highlights how a decentralized system of judicial review can be messy at times. Of course, both the lower court decisions to which Cohen is alluding will be appealed, and eventually an important question of constitutional law like this one will be heard by the nation's highest court, the U.S. Supreme Court, so even in a decentralized system of judicial review, important questions of constitutional law are eventually settled.

For more on these NSA cases see Cohen's interview on PBS news and this article in the Süddeutsche Zeitung.

06 December 2013

Another English Judge Questions Legitimacy of ECHR Rulings

Last week I linked to an article where a senior English judge questioned whether English courts should have to follow rulings issued by the European Court of Human Rights. A few days ago the former head of the English judiciary made a similar remark:

Declaring that Strasbourg "is not superior to our supreme court" in London, Lord Judge, who retired in October, said parliamentary sovereignty should not be exported to "a foreign court".
He is the third senior judicial figure in recent weeks to warn about the dangers of an emerging "democratic deficit" if the ECHR continues to evolve into in effect a law-making body and forces the UK government to give prisoners the vote against parliament's expressed will.

03 December 2013

U.S. Federal Appeals Process

I recently came across an article headlined "Appeals court upholds law banning political ads on public broadcasting." When I read deeper into the article, I came across this passage:
Previously, a three-judge panel of the appeals court struck down the ban on political advertising but upheld the ban on for-profit advertising. But the federal government sought a rehearing in front of the full panel of judges.
This is an excellent example of an en banc hearing before a federal court of appeals, although the phrase "en banc" appears no where in the article. Remember, when one loses in the appeals court, one has two further options for appeal, either file a request with the Supreme Court (the normal route) or ask the full bench of the appeals court to review the ruling made by the three judge appellate panel. That is what happened here.

As an aside, being granted either form of appeal is extremely rare.

02 December 2013

What is the D.C. Circuit?

Students learning about the structure of the U.S. federal court system probably focus more on the geographical divisions of the appeals court more than any other aspect of the system, primarily because that is something upon which I put particular emphasis in our lecture about the system.

While I do mention that there are two other Courts of Appeal in addition to the 11 regional appeals courts, I really do a disservice to the D.C. Court of Appeals by not talking more about it. This court is arguably the second most important court in the federal court system for the reasons set forth in an excellent Q&A put together by The Blog of the Legal Times. Students interested in obtaining a deeper knowledge of the U.S. federal court system should give this a read.

29 November 2013

English Judge Questions Supremacy of Human Rights Court

The UK's longest serving Court of Appeal judge is causing a bit of stir in English legal circles. As part of a series of lectures, Sir John Laws (high courts judges automatically obtain a title upon appointment to the court) said, "I have, in common with others, come to think that this approach [treating Strasbourg decisions as authoritative] represents an important wrong turning in our law." Coverage by the Guardian also notes:
Laws, the longest-serving lord justice of appeal, questioned an important principle laid down nearly 10 years ago by Lord Bingham, who was then senior law lord.
In a case called Ullah, Bingham had said that the correct interpretation of the convention could be authoritatively expounded only by the human rights court in Strasbourg. "The meaning of the convention should be uniform throughout the states [that are] party to it," Bingham added.
But Laws disagreed. "There may perfectly properly be different answers to some human rights issues in different states on different facts. I think the Strasbourg court should recognise this."
 The remainder of the article is worth the read.

25 November 2013

Salon.com has an incredible take down of the American legal education system:
Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000.
The remainder of the articles goes on to describe American law schools as being " toxic and hyper-capitalist," and in the long run a bad investment. It is a long read, but perhaps the contrast between the author's view of U.S. law schools and your own experience here in Germany might be of interest to you.

20 November 2013

When You Don't Want the Supreme Court Take Your Case

We sometimes forget that one of the two parties whose case is being petitioned to the U.S. Supreme Court actually would rather the Court not take their case. Of course this is because one of the parties won in the Court of Appeals. The Washington Post has some recent examples of this desire to have your case rejected.